Bye, Bye, Byrd?

Summary Judgment After Hannan and Martin: Which Way To Go?

The Confusion: Byrd v. Hall

Sixteen years ago, in Byrd v. Hall, the Tennessee Supreme Court undertook "to establish a clearer and more coherent summary judgment jurisprudence" by setting out the basic principles to be applied in deciding a motion for summary judgment.[1] Byrd quickly became Tennessee's summary judgment bible.[2] It has been cited in close to 2,000 judicial opinions. Scarcely a memorandum is filed in support of " or in opposition to " a Rule 56 motion[3] that does not invoke Byrd.

Almost as quickly, Byrd drew criticism for being somewhat schizophrenic, for being based on a misreading of the federal precedent on which it was patterned, and for being premised on an odd and dysfunctional concept of "affirmative defense."[4] Over time, these internal inconsistencies have spawned some confusion and, therefore, some judicial debate about the proper application of the summary judgment principles enunciated in Byrd.[5]

In pragmatic terms, the debate has been about whether the party seeking summary judgment must itself affirmatively negate an essential element of the nonmovant's claim or whether it can just point to the nonmovant's failure to have come forward with evidence supporting its claim. In more colorful terms, the debate is about whether summary judgment is the "put up or shut up moment in a lawsuit," when the movant can force the nonmovant to show what evidence it has that would convince a trier of fact to accept its version of the facts.[6] And in more bookish terms, the debate is about what the moving party " who has the ultimate burden of persuading the court that it is entitled to a summary judgment in its favor " must do to meet its initial burden of production and thereby shift the burden of production to the nonmoving party at the summary judgment stage.[7]

One contingent read Byrd to follow, essentially, the approach taken by the federal courts, where a summary judgment is indeed the "put up or shut up" moment in a lawsuit. Under this approach, the movant may either rely on evidence adduced through discovery (or presented by affidavit), or may simply point to the nonmovant's lack of any evidence creating a genuine dispute for the jury. By relying on the nonmovant's lack of evidence, the movant challenges the nonmovant to put up or shut up, i.e., causes the burden of going forward to shift to the nonmovant to produce evidence that raises a genuine dispute as to a material fact. If the nonmovant does not "put up" that evidence, it must shut up; its case is over and summary judgment will be granted.

The other contingent read Byrd " in light of several later Tennessee Supreme Court decisions " to mean that summary judgment is not a "put up or shut up" moment. Under this approach, which differs dramatically from the federal approach, the movant cannot simply rely on the nonmovant's lack of evidence, but must itself affirmatively negate an essential element of the other side's claim. Unless and until that happens, the burden of production will not shift to the nonmovant.

The debate is not merely academic. When and under what circumstances the burden of production is shifted to the nonmovant can make the difference between winning and losing a summary judgment motion.

The Clarification: Hannan v. Alltel Publishing Co. and Martin v. Norfolk Southern Railway Company

As of Halloween 2008, summary judgment is no longer litigation's put-up-or-shut-up-moment " if ever it was " in Tennessee's state courts. Recognizing that some statements in Byrd "have led to some confusion among Tennessee courts as to the proof required for the moving party to meet its burden of production," the Tennessee Supreme Court undertook once and for all to abate the confusion in Hannan v. Alltel Publishing Co.[8] Hannan, which was decided by a 4-1 majority, clarifies that Tennessee "did not adopt a 'put up or shut up' approach to burden-shifting in Byrd or in subsequent cases" and that Tennessee has departed from the federal approach.[9] Two weeks later, in Martin v. Norfolk Southern Railway Company,[10] the Supreme Court provided additional guidance for the application of summary judgment.

After Hannan a summary judgment movant will no longer be able to shift the burden of production to the nonmovant by demonstrating that the nonmovant's evidence is insufficient, as a matter of law, to establish an essential element of its claim. Although the "put up or shut up" question has been settled by Hannan, the jurisprudential debate was not concluded. Justice Koch's dissenting opinion in Hannan takes issue with the approach endorsed by the majority on the grounds that it represents a dramatic change in the law, that it imposes burdens beyond those necessary to determine whether a summary judgment is appropriate in any given case, and that it will, therefore, undermine the utility of the summary judgment process as a tool for avoiding the time and expense of unnecessary trials.

Regardless of whether Hannan and Martin do in fact represent a dramatic change in the law, they will replace Byrd as the go-to summary judgment source because they offer clarity on the points made murky by Byrd's imprecision, as well as other guidance for proper summary judgment analysis. Byrd will still be referred to for its noncontroversial points, such as its explications of what constitutes a "material" fact and what amounts to a "genuine" issue. But the "embrace" that Byrd explicitly extended to the federal summary judgment standard has now been loosed. Hannan and Martin leave no doubt that Tennessee has departed from the federal standard and adheres to the standard they set out and have each applied: the party seeking summary judgment cannot simply point to an absence of evidence supporting the other side's claim, but must affirmatively negate an essential element of that claim.

In Practice: Hannan/Martin

To secure a summary judgment in the wake of Hannan and Martin:

A. The moving party who will bear the burden of proof at trial (usually the plaintiff, or the defendant asserting an affirmative defense or a counterclaim) must produce undisputed facts that entitle it to summary judgment as a matter of law. For example, if the defendant moves for summary judgment because the plaintiff's action is time-barred, the defendant must come forward with undisputed facts showing that the statute of limitations has run.
B. The moving party who does not bear the burden of proof at trial (usually the defendant) must either (1) affirmatively negate an essential element of the plaintiff's claim, or (2) show that the plaintiff cannot prove an essential element of the claim at trial.


To truly negate an essential element of the claim, the defendant must point to evidence that disproves an essential factual claim made by the plaintiff.[11] The defendant can rely on testimony/evidence from the plaintiff that disproves an essential element of the plaintiff's claim, but cannot rely on holes or weaknesses in the plaintiff's proof. The defendant's conclusory denials of an element of the plaintiff's claim to do not negate that element.

The key lesson is that the defendant has to do something more than assert that the nonmoving party has no evidence. Thus, the following things are not sufficient affirmatively to negate a claim or to show that the plaintiff cannot prove its claim at trial:

  • showing that the plaintiff lacks evidence to prove an essential element of its claim;
  • "nipping at the heels" of an essential element of a cause of action[12] as opposed to entirely negating that element;
  • presenting evidence that raises doubts " even serious doubts " about an essential element of the plaintiff's claim;
  • challenging the plaintiff to put up or shut up;
  • pointing to omissions in the plaintiff's proof and alleging that it will be unable to prove that element at trial; or
  • submitting an affidavit that is merely conclusory.


Here are a few examples of things that are insufficient. (1) In a medical malpractice case the plaintiff must prove at trial that the defendant failed to meet the standard of care. A defendant physician moving for summary judgment does not negate an essential element of the plaintiff's claim with an affidavit swearing in a conclusory fashion that she did not violate the standard of care. (2) In a wrongful death case the plaintiff must prove at trial that the defendant's actions or inaction caused the death. The defendant moving for summary judgment in reliance on the affidavit of a medical expert who opines that "the cause of death was unknown," will not win the motion. The affidavit does not negate the causation element of plaintiff's case, even though it does cast substantial doubt on the plaintiff's ability to prove its claim. The expert's testimony at trial may be a serious impediment to the plaintiff's claim, but it does not totally eliminate the element of causation. (3) In a slip-and-fall case the plaintiff must prove that the defendant knew of the dangerous condition. The defendant moving for summary judgment cannot rely on the plaintiff's deposition testimony that he does not know whether the defendant knew that the slippery condition existed. This evidence merely nips at the heels of " but does not negate " an essential element of the plaintiff's claim. It does not prove that the defendant did not have actual or constructive knowledge of the slippery condition. In none of these examples did the burden shift to the plaintiff to show a disputed issue of fact. Summary judgment is not appropriate even when it is highly likely that the plaintiff will not be able to prove its claim at trial.

When the burden of production does shift to the nonmovant, it must come forward with evidence that creates a genuine dispute as to a material fact in order to defeat the motion for summary judgment. It has to do more than show that there is "some metaphysical doubt as to the material facts."[13] "'[T]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].'"[14] "Speculation" will not suffice. Inferences and opinions must be grounded on more than speculation, hunches, intuitions, or rumors.[15] For example, the plaintiff cannot avoid a summary judgment by speculating that the defense witnesses are lying. While it is true that witness credibility evaluations are inappropriate at the summary judgment stage, when the plaintiff relies solely on a challenge to a witness's credibility to defeat summary judgment, the plaintiff has to have some independent proof to support the claim that the defense witness is not credible. For example, claiming that a witness has a bias because he is employed by the defendant is not enough to defeat summary judgment without some "affirmative evidence" other than the employment relationship to support the claim of bias.[16]

Hannan clarifies when and how the burden of production shifts to the nonmoving party. What that nonmoving party must then do to defend against the motion for summary judgment is the same as it always has been. Byrd's analysis of what the nonmoving party must do to satisfy its burden of production remains unchanged. Once the defendant succeeds in negating an essential element of the plaintiff's claim or in showing that the plaintiff cannot prove an essential element of its claim at trial, then, to survive the motion for summary judgment, the plaintiff must produce evidence of specific facts establishing that there is a genuine issue of material fact. The plaintiff may do this by (1) pointing to evidence that the defendant ignored, (2) rehabilitating evidence that the defendant attacked, (3) producing additional evidence that shows that there is a dispute of fact, or (4) demonstrating (by affidavit) that further discovery is necessary.[17]

In burden-shifting terms, it works like this: the defendant (the movant) has the ultimate burden of persuading the court that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. If the defendant shows that there are no genuine issues of material fact, then the burden of production shifts to the plaintiff (the nonmovant) to produce countervailing evidence. The defendant cannot shift the burden by demonstrating that the plaintiff's evidence at the summary judgment stage is insufficient to establish an essential element of its claim. To shift the burden of production to the plaintiff, the defendant must either (1) affirmatively negate an essential element of the plaintiff's claim or (2) show that the plaintiff cannot prove an essential element of its claim at trial. If the defendant does neither, then the burden of production never even shifts to plaintiff, and the motion will fail.

While the federal summary judgment standard places the burden of production at the summary judgment stage on the same party who would bear the burden at trial, the Tennessee system does not consistently do so. In Tennessee, the summary judgment movant always bears the initial burden of production " even if it would not bear this burden at trial and even if the nonmoving party has absolutely no proof in support of one or more of the elements of its claim. If the defendant moves for summary judgment on an affirmative defense that it asserted, the defendant's burden of proof at the summary judgment stage is the same as it would be at the trial stage. Likewise, if the plaintiff moves for summary judgment on its own claim, it has the same burden of proof at the summary judgment stage as it would have at trial.

But when the defendant moves for summary judgment on the plaintiff's claim, the defendant will be faced with a burden that it would not have at trial. At trial, the plaintiff would have the burden of proving all the essential elements of its claim at trial. However, under Tennessee's summary judgment regime the defendant is saddled with the burden of proof, a burden that requires the defendant to prove the
negative of plaintiff's claim.

An Example: Hannan

Hannan itself provides a good example of how difficult it can be to meet that burden. The Hannans owned and operated the Magnolia House Bed and Breakfast and Tellico Plains Realty. They advertised both businesses in telephone directories published by Alltel Publishing Company. Alltel omitted certain ads and listings for which the Hannans had contracted. The Hannans sued Alltel for negligence. Alltel insisted that the claim was one for breach of contract. Either way, issues in the ensuing litigation were whether the plaintiffs had been damaged by the omissions and, if so, in what amount.

At trial, the plaintiffs would have the burden of proving (1) that they had suffered damage and (2) the amount of that damage, if any. But at the summary judgment stage, it fell to the defendant to prove the negative: that the plaintiffs had not been damaged or that they would be unable to prove they had suffered any damages.

The plaintiffs had testified in deposition that they had "absolutely no way" of assessing the extent of their damages and "neither does anyone else." It was "impossible" to identify records that could quantify the damages. Nor could the Hannans explain why their gross income had gone up in the year in which they claimed they had suffered a loss. Alltel moved for summary judgment, citing that evidence and pointing out that the Hannans could not prove with reasonable certainty that they had been damaged at all. The Hannans did not dispute the facts relied on by Alltel, but said that they would establish damages by proof at trial.

The Supreme Court found that the evidence relied on by Alltel was insufficient to shift the burden of production to the Hannans. The evidence did not negate the existence of damages; it showed only that neither party could put a number on the amount of damages. The Hannans' inability to quantify their damages at the summary judgment stage was not tantamount to showing, affirmatively, that they would not be able to provide proof at trial from which the trier of fact could make a reasonable assessment of the damages. Because Alltel failed to negate an essential element of the Hannans' claim or show that they could not prove an essential element of their claim at trial, Alltel had not met its burden of production and the burden never shifted to the Hannans to show that they could prove damages. No summary judgment.

That result would have been different in federal court.[18] There the defendant would have won its motion for summary judgment because in the put-up-or-shut-up world of federal court it could have relied on the omission in the plaintiff's evidence. The Hannans would have been required at that moment to put up or shut up. Their wait-until-trial response would not have worked. Under the federal standard, when Alltel pointed to the Hannans' lack of proof as to the amount of damages, the burden would have shifted to the Hannans to provide, at least, evidence of a foundation on the basis of which the trier of fact could make a reasonable assessment of the damages.

But in Tennessee, the movant cannot force the nonmovant to produce evidence of facts establishing an element of the plaintiff's claim unless or until the movant has truly negated that element. The movant cannot compel the nonmovant to put up or shut up. The trial court must first focus on whether the movant triggered the nonmovant's burden of going forward by negating an essential element of the nonmovant's claim. The trial court errs if it addresses only the sufficiency of the nonmovant's evidence.[19]

Some Things to Consider

While Hannan still views summary judgment as a useful tool "to weed out frivolous claims,"[20] it has made that tool less sharp and more difficult to wield. Summary judgments will be harder to come by in state court. Making and defending motions for summary judgment post-Hannan may require some rethinking.

It may be important to consider the Hannan clarification when deciding whether you want to be in state court or federal court. Forum selection may make a difference in certain cases in which motions for summary judgment will play an important part. The calculus will, of course, vary with the objectives and particulars of each case. Generally speaking, if you think you will be defending against a motion for summary judgment, you might rather be in state court. On the other hand, when your litigation strategy includes making a motion for summary judgment, federal court might be more hospitable.

In planning for and making a motion for summary judgment, it would be unwise to rely on intermediate appellate court cases in which summary judgment was affirmed based on the plaintiff's lack of evidence, rather than on the defendant's affirmative negation of an essential element of the plaintiff's claim, for example Denton v. Hahn.[21] Before you recycle the cases you have cited in the past in support of a motion for summary judgment, reread them carefully to make sure they do not fall into this category. A handful of Court of Appeals cases in which the moving party successfully negated an essential element of the nonmoving party's claim are listed " and thereby given the imprimatur of the Supreme Court " in footnote 5 in Hannan. You can still rely on those particular cases. Indeed, those footnote 5 cases can also be consulted for concrete examples of what it takes to "affirmatively negate" an essential element of your opponent's claim.

There comes a point in litigation when discovery is complete " or at least the discovery cutoff deadline has passed " after which neither party should be permitted to ambush the other at trial with evidence that was requested, but not produced, in discovery. Neither Hannan nor Martin deals with discovery as itself being this kind of "put up or shut up" point in litigation. The Supreme Court notes that at trial the Hannans "must provide a foundation that would allow a fair and reasonable assessment of damages," but one is left to wonder why they were not required to disclose the planks of that foundation as part of the discovery process. The answer may be, simply, that Alltel did not push the issue because it believed that the responses it got in discovery were sufficient to support a motion for summary judgment.

In any event, to put yourself in the best position to bring or defend motions for summary judgment it might make sense to consider your discovery strategy in light of Hannan. Having to prove the negative of your opponent's case in order to win a motion might suggest a different set of discovery questions and requests to admit. The scope of your answers " which must of course still fairly respond to the discovery " may be different if your opponent has to prove the negative of your case and cannot rely on omissions in your evidence. Motions to compel may become a more prominent feature of the discovery process.

Think hard before you file a motion for summary judgment. If you don't win, will you just be educating your opponent and giving him a chance for a do-over? For example, if you are defending a medical malpractice case and the plaintiff reveals in discovery that he is relying on an expert who absolutely does not satisfy the locality rule, should you move for summary judgment? Maybe not. You will show that the plaintiff cannot prove his case with that particular expert, but you will not be affirmatively negating an essential element of the plaintiff's case. You may just be warning the plaintiff that he needs to find another expert.

Notes
1. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).
2. See Case Note: Clarified Procedure for Summary Judgment, 61 Tenn. L. Rev. 375.
3. Rule 56 of the Tennessee Rules of Civil Procedure governs summary judgments. It instructs that a summary judgment shall be granted "forthwith" if the pleadings, discovery responses, admissions, and affidavits, all taken together, show that no material fact is genuinely in dispute and that the moving party is entitled to a judgment as a matter of law.
4. See June F. Entman, "Flawed Activism: The Tennessee Supreme Court's Advisory Opinions on Joint Tort Liability and Summary Judgment," 24 Mem. St. U. L. Rev. 193 (1994); Judy M. Cornett, "The Legacy of Byrd v. Hall: Gossiping about Summary Judgment in Tennessee," 69 Tenn. Law Review 175 (2001).
5. See, most notably, Denton v. Hahn, 2004 Tenn. App. LEXIS 605 (Cottrell, J., concurring), and Martin v. Norfolk Southern Railway Company, 2007 Tenn. App. LEXIS 417 (Tenn. Ct. App., July 6, 2007) (Susano dissenting). It is not the purpose of this article to detail again the purported flaws in Byrd or to describe the judicial debate that has taken place, spirited and interesting though it has been. Amy Pepke has most astutely accomplished both purposes " and much more " in these very pages 8 months ago. She argued that the Supreme Court should abandon the part of Byrd that, for no good reason, shifts the initial evidentiary burden of production to the moving party and should adopt the reasoning in Denton. Amy M. Pepke, "Prove It: Finding the Middle Ground in Tennessee's Evolving Summary Judgment Standard," 43 Tenn. B.J. 12 (cover story, July 2007). That excellent article, along with Professor Cornett's most incisive and insightful "gossip column" (cited above in note 4), are highly recommended for readers who are looking for background, details, and analysis of the pros and cons on each side of the debate.
6. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007); accord Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
7. The burden of production is a party's duty to produce enough evidence to have a given issue considered by the trier of fact, rather than having the issue dismissed by the court on a motion for summary judgment or a directed verdict. The burden of persuasion is a party's duty to convince the court to view the facts in its favor. The burden of proof is the umbrella covering both the burden of persuasion and the burden of production.
8. Hannan v. Alltel Publishing Co., _______ S.W.3d ______ (Tenn. 2008), 2008 Tenn. LEXIS 792.
9. Hannan v. Alltel Publishing Co., _______ S.W.3d ______ (Tenn. 2008), 2008 Tenn. LEXIS 792 at *10. Hannan explains that in Byrd Tennessee began its departure from the federal standard for summary judgment and continued that departure in later cases.
10. Martin v. Norfolk Southern Railway Company, ______ S.W.3d ______ (Tenn. 2008), 2008 Tenn. LEXIS 863.
11. Martin v. Norfolk Southern Railway Company, ______ S.W.3d ______ (Tenn. 2008), 2008 Tenn. LEXIS 863 at *15.
12. Ray v. Board of Education of Oak Ridge, 72 S.W.3d 657, 662 (Tenn. Ct. App. 2002).
13. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
14. See, e.g., Cox v. Kentucky DOT, 53 F.3d 146, 150 (6th Cir. Ky. 1995) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986)).
15. See, e.g., Cox v. Kentucky DOT, 53 F.3d 146, 150 (6th Cir. Ky. 1995); Springer v. Durflinger, 518 F.3d 479, 485-486 (7th Cir. 2008).
16. Adcor Indus. v. Bevcorp LLC, 252 Fed. Appx. 55, 61 (6th Cir. Ohio 2007).
17. Byrd v. Hall, 847 S.W.2d 208, 215 n. 6 (Tenn. 1993); Martin v. Norfolk Southern Railway Company, ______ S.W.3d ______ (Tenn. 2008), 2008 Tenn. LEXIS 863 at *15-16.
18. The Court of Appeals in Hannan recognized that the defendant would have won its motion for summary judgment in federal court. Hannan v. Alltel Publ. Co., 2007 Tenn. App. LEXIS 50, 21-22 (Tenn. Ct. App. Jan. 26, 2007).
19. McCarley v. West Quality Food Service, 960 S.W.2d 585, 587-88 (Tenn. 1998).
20. Hannan v. Alltel Publishing Co., _______ S.W.3d ______ (Tenn. 2008), 2008 Tenn. LEXIS 792 at *20.
21. Denton v. Hahn, 2004 Tenn. App. LEXIS 605.


Andrée Sophia Blumstein ANDRÉE SOPHIA BLUMSTEIN is a partner at Sherrard & Roe PLC in Nashville. Her practice, which concentrates on appellate litigation, includes a special focus on state and federal antitrust counseling and litigation. She received her law degree from Vanderbilt University, where Don Paine taught her all about summary judgments and the other intricacies of Civil Procedure. She currently serves as chair of the Tennessee Bar Journal Editorial Board.